Last Monday, February 9, the ABA quietly approved amendments to Model Rule 1.14 and its comment. The resolution with the new approved version of the rule and comment is available here. The updated version of the rule and the comment can be found here.
Although the changes are lengthy (particularly in the comment), in the end, the analysis remains essentially the same as in the old rule. Here are three important highlights:
(1) the rule replaces the term “client with diminished capacity” with “clients with decision-making limitations.” Some say this was done to “tackle” bias reflected in the word “diminished” when referring to the capacity of an individual. Yet, I personally don’t think that was really an issue. Both terms have their utility. The term diminished capacity refers to the fact that capacity is a matter of degree. There is full capacity at one end, and incapacity at the other. Diminished capacity refers to circumstances where a person does not have full capacity but has some capacity. So, call it less capacity, or lesser capacity, if you will; but it used to be called diminished capacity because the individual has less than full capacity. The term “decision-making limitations” is also descriptive because it helps place the issue in its proper context. The issue relates to whether the lawyer should respect the client’s autonomy to make decisions, or whether the client has the capacity to make decisions, and, if not, the issue of what is the proper analysis to determine who can and should be making decisions for the client. Thus, personally, I am ok with either the old language or the new one but if you want to be accurate, make a note of the new official language in the title of the rule.
(2) The new rule and comment try to counter the fact that some thought the old rule unintentionally encouraged lawyers to pursue guardianship or conservatorship over clients even when less restrictive alternatives might be more appropriate. Thus the new version is intended to encourage attorneys to explore less restrictive forms of protective action and to keep in mind that pursuing or recommending guardianship may be more intrusive than the circumstances require.
(3) The bulk of the changes are to the comment of the rule. In terms of substance, the new comment adds a lot of detail to the guidelines in the old comment, making explicit a lot of what was original implicit -- which is good. But, in terms of format, the drafting of the new comment is surprisingly sloppy. First of all, the drafters forgot that the comment to the rule is ONE big comment with numbered paragraphs, not individual comments. At least in the version published in the ABA's website, as of now, there are two different paragraphs numbered [4], which should be corrected. More importantly, there are a number of new paragraphs that are not numbered at all. This is a pet peeve of mine, I know, but if you are going to use a certain format, it is important to be consistent throughout the rules. The sloppiness derives from the fact that everyone refers to the comments to the rules by number (ie, saying comment number x to rule whatever), when in fact the actual format is that there is one comment (singular) to each rule and that the numbers are the numbers assigned to each paragraph in that one comment. Now, the new comment to Model Rule 1.14 is drafted in one style, while the rest of the rules are different. You might think this is silly, but it isn't when you are trying to figure out the proper way to cite to something in the comment.
For more commentary on the changes in the new rule and comment, you can read this short but valuable explanation published in the ABA’s website.
